I'm a privacy pragmatist, writing about the intersection of law, technology, social media and our personal information. If you have story ideas or tips, e-mail me at khill@forbes.com. PGP key here.
These days, I'm a senior online editor at Forbes. I was previously an editor at Above the Law, a legal blog, relying on the legal knowledge gained from two years working for corporate law firm Covington & Burling -- a Cliff's Notes version of law school.
In the past, I've been found slaving away as an intern in midtown Manhattan at The Week Magazine, in Hong Kong at the International Herald Tribune, and in D.C. at the Washington Examiner. I also spent a few years traveling the world managing educational programs for international journalists for the National Press Foundation.
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Phonedog Sues Ex-Employee For His Twitter Account, Valuing His Followers At $2.50 Each

Phonedog wants to lay claim to 17,000 of Noah Kravitz's over 21,000 followers

Noah Kravitz worked as a mobile phone reviewer for a tech website called Phonedog for four and a half years. He had been part of a “virtual office,” so when he left the site in October 2010, the only thing he really ‘packed up’ was his Twitter account. He had started it in 2007 and chose the Twitter handle @PhoneDog_Noah. When he left Phonedog, he had approximately 17,000 followers and changed his Twitter handle to @noahkravitz.

This summer, Phonedog started barking that it wanted the Twitter account back, and sued Kravitz, valuing the account at $340,000 (!), or $2.50 per follower per month.

(Ca-ching! That means my account is worth around $13,000 this month, if anyone’s interested…)

Among the claims in its lawsuit, Phonedog says that the followers, as well as Kravitz’s Twitter password, were its “trade secrets.” A judge ruled last week that the lawsuit is legitimate enough to survive Kravitz’s motion to dismiss, notes Venkat Balasubramani, a tech lawyer and blogger who voices some skepticism about public lists of followers constituting a trade secret.

Sometimes it’s clear that a social networking account belongs to a company (A useful clue: the Twitter account has the company’s name.) In that case, the account is kind of like a company car; you’ll have to hand it over, along with the keys/password, when you leave the company. (Hopefully, a company won’t have to actually go to court to get those keys, as Ardis Health did. ) But a personal social networking account is like your own car which you expect to use to get to work in your next job.

I spoke with Kravitz, who says that Phonedog never knew the password for his account. “No one asked me to create the account. No one told me what to tweet there,” says Kravitz, who originally created the account because that what’s everyone in the tech world was doing. “I had no inkling then that [having a Twitter account] would become an essential part of being a so-called journalist.”

Kravitz says the account has always been a mix of work and personal — “my content, other people’s content, sports, music, food.” Kravitz has continued to attract followers since leaving Phonedog and joining another tech news site, called Technobuffalo. He now has over 21,000 followers. (Perhaps if Phonedog does win, and gets control of his account, he can charge them in perpetuity $2.50 per follower per month for the extra 4,000 he accumulated after leaving.)

Stephen Riden, a partner at Beck Reed Riden LLP, who specializes in employment law, says the case is “murky,” in part because Kravitz included “Phonedog” in his Twitter handle. “Employers usually address this in their employee manuals — whether an employee can include their name or brand in social networking accounts, and whether accounts are being set up for the company or the employee,” says Riden. “It’s much cheaper to spell this out ahead of time than to litigate it after the fact.”

While this may be the first lawsuit over Twitter followers, it’s not the first time the issue of who “owns” someone’s Twitter contacts has come up, notes Mike Masnick at Techdirt, who asked the question last year when a popular CNN reporter was fired and walked away with 150,000 Twitter followers. Working at a particular company can certainly help Tweeps accumulate followers (thanks, Forbes and Above the Law!), but that shouldn’t mean that those companies should claim to own those followers, in this blogger’s humble opinion.

The issue of whether employers or employees owns social networking contacts is starting to pop up in courts in the U.S. and around the world. Last month In 2008, a U.K. court ruled that Mark Ions, a former recruitment firm employee, had to hand over all of his LinkedIn contacts to his former employer.

“[B]oth employers and employees need to start considering ownership of social media contacts,” wrote Deb McAlister here at Forbes in a post, Who Owns Your LinkedIn Contacts?. “Paying attention to the documents you sign when you are hired – or reviewing them after the fact if need be – is becoming more important for all employees.”

Kravitz has learned that lesson: “[With an employer] in the future, I would make it clear that a social networking account is mine and that I own it and its contacts.”

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Employers definitely have an interest in ensuring that audiences built by their employees in the normal course of employment are retained when the employee leaves.

When a salesperson leaves employment, the employer’s relationships with the customers he developed on behalf of the company don’t end (unless the customer opts to follow the former employee to the new company). The employee can’t take his rolodex with him and simply transfer his accounts to the new company.

Twitter followers built using a corporate identity on company time should remain the company’s intellectual property, especially if the Twitter ID was created in the course of employment, as was the case here. (Building a brand was part of what he was being paid to do.) Followers are the customers of digital media.

ID’s built around the individual’s identity (eg @Kashhill) may be different – especially if they existed prior to employment.

Employers should have a policy and employee handbook statement indicating all of this but we’re all figuring this out as we go.

@michaelcoffey: The use of “employee” in this article is actually inaccurate. In the court papers, PhoneDog claims Kravitz was never actually an employee; he was a contractor. Unless his contract specifically talked about the twitter account, what claims could PhoneDog have?

Also, his final post for the site said “Follow me at @noahkravitz” Why would the owners of the site approve and publish this endorsement of the name change if they felt the account was stolen?

http://www.phonedog.com/2010/10/18/noah-s-farewell-post/

Given that Kravitz is suing PhoneDog for revenue sharing, as the article indicates, this really smacks of some sort of revenge suit/negotiating tactic and not a legitimate case. This is America after all – you can sue for anything, especially in the land of uncharted legal territory.

I hope that employers are a little savvier about this now than they were in 2007 (when the Twitter account at the heart of this suit was created). It sounds like Kravitz used his Twitter account much the way I always have mine — a mix of tweeting about work topics (privacy in my case), linking stuff I’m reading, linking to my own articles, and occasionally “personal stuff.” The big difference is that he incorporated his employer’s name into his Twitter handle. As Jonnyramirez points out, he was a freelance contractor for much of his time at the site, not their “social media specialist” and he and the employer didn’t discuss ownership of the account. I’m very curious to see what happens in this case moving forward.

Kashmir, As I also am a freelance journalist who writes on privacy, occasionally throws some personal and professional into the mix, I take a much different view.

Imagine that Noah was at a networking event and happened to hand out business cards that his client had supplied him with, (since he was a contractor and not a direct employee of the company.) Noah met and eventually chatted with other attendees from the event and they became friends, acquaintances and people he knew. Could his client then demand that they owned ALL his friends after he exited the partnership? Seems to me, the moment we put a dollar-sign and treat people only as currency, it’s not even about GOOD sales technique.

If Noah’s client wins the suit, we have more problems brewing. Here is already another debate raging over who owns the photographic rights on twitter of material posted. (http://paidcontent.org/article/419-in-lawsuit-wire-service-afp-says-twitter-pictures-are-free-for-taking/)

One thing is for sure, as we all gain from social media, contractors and businesses need to come to an understanding FIRST. It was clear when @NoahKravitz changed his screenname that his client approved. They allowed the screenname and the call to action to be published on their site. They could only benefit from the relationship. I applaud JonnyRamirez for pointing out what some of us may be thinking: It certainly looks like a ‘tit for tat’ suit or retaliation against Noah.